5. CONTENTS AND IMPACTS OF "NANJING AGREEMENT"…
5.2 Characteristics and Legal Status
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(3) Article 8, paragraph 2: "The requested party should try his best to provide assistance in the form required by the requester, if it does not violate his own rules".
(4) Article 14, paragraph 2, "If the execution of the request would prejudice the ongoing investigation, prosecution or judicial proceedings, the requested party may suspend the provision of assistance and explain to the requester."
(5) Article 15: "The two sides agree that if content of the request does not meet one's own regulations or execution of the request would prejudice the public interest or morals of one's own and other circumstances, the requested party may not provide assistance and explain to the requester".
5.2 Characteristics and Legal Status
Undoubtedly, cross-Strait mutual legal assistance is strongly needed. Even during the period in which cross-Strait negotiations have been suspended, the research of mutual legal assistance has not been interrupted. What on earth is the legal
characteristic of the cross-Strait agreements? Are they international agreements, treaties, or quasi international agreements, treaties, or public laws? Actually it depends on the definition of both sides.
1. Assertion of Taiwan
Interpretation No. 329 of Council of Grand Justice, Judicial Yuan states: "The treaty defined in the Constitution means international agreement concluded by the Republic of China and other countries or organizations, including those using the name of the treaty, convention or agreement, and the contents are directly related to important affairs of the state or rights or obligations of the people and has legal effect.
Those contracts, whose titles are treaty, convention, or agreement with the approval provisions, should certainly be sent to go through the Legislative Yuan. The rest of the international agreements, except those authorized by law or agreed by the
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Legislative Yuan in advance, or its contents are identical with the domestic law, should be sent to the Legislative Yuan for review". According to the Constitution and Constitutional Amendments, cross-Strait relations are not" international relations", nor" domestic relations. Therefore, the agreement signed by the two sides is not the treaty which Constitutional refers to. It is not equivalent to the written agreement of international treaties either. Article 5, paragraph 2 of “Act Governing Relations between The People of The Taiwan Area and The Mainland Area” states: Cross-Strait agreement which is related to the amendment of the law or shall be prescribed by law, should be submitted to the Executive Yuan and transferred to the Legislative Yuan for review within 30 days. If the agreement is not related to amending the law and to the rights and obligations of people, it can be regarded as an executive order. The dealing institution should only report it to the Executive Yuan for approval. But out of respect for the right of supervising of Congress, the agreement will also be submitted to the Legislative Yuan for reference.
2. Assertion of mainland China
Compared with Taiwan, mainland China has a more consistent view on cross-Strait agreements. The mainland thinks the agreement is stipulating affairs about "interregional mutual legal assistance" under the concept of "one country, two systems, three legal systems, four jurisdictions". This concept produces the following characteristics:
(1) Does not apply the principle of national sovereignty.
(2) Simplifying procedures of international mutual assistance in criminal matters.
(3) Fully respects the legal system of each jurisdiction.
From the above cross-Strait perspective of Taiwan and mainland China, there are still great differences between the two sides, and these differences are difficult to solve by negotiations. At the moment, when Taiwan and mainland China are dealing
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with meetings like "Jiang Chen talk", they will shelve disputes, escaping political positions in the framework. The "Nanjing Agreement" is a good example. For example, there are usually terms such as “reciprocal” and "national treatment" in prefaces of international agreements. In order to avoid trouble, such terms are deleted in the “Nanjing Agreement”. Furthermore, Taiwan and China also follow the
"Kinmen Agreement" precedent, using "repatriation" instead of "extradition", which can be acceptable to mainland China. Because the two sides have the consensus for de-politicization, Taiwan and mainland China realized the normalization and institutionalization of mutual legal assistance.
5.3 Impacts of “Nanjing Agreement”
The "Nanjing Agreement" is basically drawn up with reference to the
"Agreement on Mutual Legal Assistance in Criminal Matters between USA and Taiwan ", but it is still different from other international mutual legal assistance agreements, due to the special political situation between the two sides, and contents of cooperation in combating crimes stipulated in it. Basically, after the signing of this agreement, the judiciary departments of Taiwan and mainland China have established a cross-Strait direct, formal, institutionalized cooperation, symbolizing the beginning of a deeper level of cross-Strait cooperation in the judicial field. Accompanying the implementation of the “Nanjing Agreement”, the condition of cross-Strait mutual legal assistance and joint crime-striking actions has been changed as follows:
1. From indirect cooperation to direct cooperation: before the signing of the
“Nanjing Agreement”, cross-Strait cooperation on fighting crime was executed in an informal, indirect way due to the lack of legal basis. Because this kind of cooperation is continually affected by many external factors, cross-Strait cooperation against crime remains ineffective. Article Three of the "Nanjing Agreement" clearly stipulates
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that the subjects for cross-Strait contact refer to "the contact designated by authorities in charge". That means both sides have direct contact in the judiciary department.
Coordination through the intermediary of other units is no longer need. Both sides of Taiwan Strait can enter a new type of direct cooperation.
2. Single aspect into diversification: cross-Strait cooperation in combating crimes in the past was limited to assistance in arresting criminals and repatriation of criminal suspects. Other cross-Strait crackdown action is rare. The "Nanjing Agreement"
covers the basic mutual assistance in criminal and civil matters, diversifying cross-Strait cooperation in combating crime and mutual legal assistance.
3. Expansion of joint crime-striking levels: cross-Strait crimes have happened more and more frequently in recent years, and the skills and tactics are changing. In the past, the judicial police of both sides of the Taiwan Strait only cooperated on fighting major criminal offenses, such as drug trafficking, crimes at sea, and hijacking.
According to Article Four of the "Nanjing Agreement", the most serious crimes, economic crime, and corruption are all included in the scope of cross-Strait
cooperation in combating crime, and "other crimes" are also included. Now judicial police have legal basis for cross-Strait cooperation in combating crimes, and the items are also increased significantly.
4. Simplification of repatriation procedures: Article Six of "Nanjing Agreement"
stipulates that repatriation should follow the principles of quick and convenient.
Repatriation can be implemented without participation of the Red Cross or the SEF and ARATS. So efficiency is significantly elevated. During the implementation of the procedures, judicial documents do not have to go through substantive review, and arrest warrants are not required. Moreover, sites for repatriation from the mainland are not limited to Xiamen or Mawei. In the case of cross-Strait direct flights, efficiency is apparently improved.
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5. Active crime-striking actions: Article Five of the "Nanjing Agreement"
stipulates the cross-Strait exchange of criminal intelligence and cooperation for investigation of crime. After a mechanism of exchange of information is established, the content of cross-Strait cooperation can be expanded and deepened to form a comprehensive, multi-level exchange, so that both sides can grasp the overall
situation, and the exchange of information will help crack down on cross-Strait crime and prevent future crime.
5.4 Follow-up Legislation
The "Nanjing Agreement" could be classified as framework agreement,
stipulating the direction and spirit of the cooperation in combating crimes and mutual legal assistance, not the details of real execution. For making the provisions of the
"Nanjing Agreement" into action, both sides have to legislate on the basis of the spirit of this agreement.
For promoting cross-Strait cooperation in fighting crimes and mutual legal assistance, our government has completed five draft Guidelines, including:
"Guidelines for the Exchange of Intelligence", "Guidelines for the Repatriation of Arrested People," "Guidelines for Investigation and Evidence Collection,"
"Guidelines for Delivery of Documents" and " Guidelines for Transfer of Criminals", all of which are under deliberation of Executive Yuan now.
On May 14, 2009, mainland China promulgated the "Supplementary Provision of Recognition of People's Court over Civil Judgments of Taiwan Courts", to adapt provisions of recognition of the civil judgments in "Nanjing Agreement". This provision expressly confirms that civil judgments of Taiwan have legal power in China courts. The trial would not be held again unless there is new evidence or
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something different. That is, "non bis in idem."89
5.5 Negative Comments
Generally speaking, officials, Dharma Realm and many police units of Taiwan and mainland China hold positive attitude towards "Nanjing Agreement", asserting that signing this agreement would facilitate cross-Strait cooperation in combating crimes. According to the release of the poll by Mainland Affairs Council in April, 2010, 79.6% of support the Taiwan and mainland China process consultations on cooperation in combating crimes and signing an agreement to resolve the problems of judicial investigation and repatriation of prisoners.90 We can suppose that Taiwan's public opinion has high expectations for the "Nanjing Agreement".
Although the mainstream of public opinions expects the "Nanjing Agreement" to bring positive effects to cross-Strait mutual legal assistance in fighting crime, some scholars and opposition parties in Taiwan have different views towards the "Nanjing Agreement". Negative effects towards "Nanjing Agreement" are stated separately as follows:
1. Taiwan courts could become China's accomplice for oppressing Taiwanese businessmen.
Taiwan's largest opposition party, the Democratic Progressive Party, thinks the quality, system, and culture of justice of both sides are very different, and the difference would jeopardize our judicial basis. Article 10 of “Nanjing Agreement”,
"recognition of judgment," states that "on the basis of the principle of reciprocity, as long as it is not contrary to public order or good customs, civil decree and arbitration should be mutually recognized and executed ". However, judges of mainland China
89 Aforementioned footnote 6
90 Available at: http://www.sef.org.tw/ct.asp?xItem=50645&ctNode=4287&mp=37. Date of logging on:
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are usually not qualified, and Chinese courts are ruled by man instead of by law. The judiciary often loses its independence and impartiality. Once Taiwan businessmen encounter lawsuits in China, they often become lambs to the slaughter. If this
agreement is implemented, the Chinese court's decision will also have res judicata in Taiwan. Taiwan courts have to approve judgments made by China courts, and then become Taiwan "Executive Department" of China courts; this is tantamount to helping China persecute Taiwanese.
2. The model of document delivery has dwarfed Taiwan's status.
Former DPP spokesman Cheng Wen-Tsan pointed out that article Seven of
“Nanjing Agreement”, stipulating "delivery of documents", stated that delivery of judicial documents should be "in accordance with one's own regulation". According to international norms, the delivery of judicial documents should be done by diplomatic departments (the embassy or the office in charge of diplomatic affairs). For the time being, China adopts the “court to court” model to convey legal documents to Hong Kong and Macao. If China deals with delivery of legal documents "in accordance with one's own regulation" and adopts “court to court” model towards Taiwan, the SEF and ARATS will be skipped, and Taiwan will have equal status as Hong Kong and Macao. So this is a major deficiency.91
3. The ineffectiveness of repatriation
Some scholars believe that part of the cross-Strait cooperation in “Nanjing Agreement” originally had existed before it was signed. The agreement only slightly expanded the content of cross-Strait judicial cooperation and made it explicit. The main influence of this agreement depends on the effectiveness of repatriation.
91 Available at: http://www.libertytimes.com.tw/2009/new/apr/30/today-p4.htm. Date of logging on:
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Since the two sides opened up to each other, the trend of the perpetrators fleeing to United States to circumvent prosecution has gradually transferred to China. While Taiwan and China do not recognize the sovereignty of each other, there was little mutual legal assistance between them in the past, and mechanisms of crime
prevention were vulnerable. That is why repatriation of prisoners became the main subject of negotiation of “Nanjing Agreement”. However, whether repatriation is successful or not still relies on the decision of requested party. In the present situation, the number of people fleeing from Taiwan to the other side is much more than the number of those fleeing from mainland China to Taiwan. Therefore, China is the party who can decide. If Taiwan asks mainland China to repatriate some criminals who have made considerable contributions to the mainland's economic or political status, mainland China may refuse, saying it will undermine the principles of humanity or other public orders. If this agreement can only contribute to the repatriation of some people who did not commit a major crime, while turning a blind eye to the others, then such an agreement can not meet our expectations.
4. Religious prisoners and political prisoners could be a problem in the future.
Article Four of the “Nanjing Agreement” expressly provided “for the behavior which is not regarded as a crime in one party, as long as it will significantly harm the society, both sides can offer assistance if they agree”. Such agreement has not only violated the principle of dual criminality, it has also likely made Taiwan help to persecute and repatriate political criminals or exiles. Article 300, paragraph 1 in Criminal Law of China, provided that “people who organize and utilize secret societies, cults and superstition damaging the country and laws, must be sentenced from three to seven year’s imprisonment”. Based on the protection of freedom of belief, there is not so-called cult stipulated in Taiwan criminal law. If China requests Taiwan to repatriate Falun Gong practitioners, Taiwan invariably must turn down such a request on
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humanitarian reasons. But the results of such a refusal would inevitably make it harder for Taiwan to request the repatriation of criminals fleeing to mainland China.
The institutionalization of the repatriation program will go back to the negotiating table for the consultation, and this is not the expected result.92
92 Available at: http://www.nownews.com/2009/12/23/142-2549741.htm. Date of logging on:
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6. ACHIEVEMENTS AND EXISTING PROBLEMS
After the signing of the “Nanjing Agreement”, the two sides have had
remarkable achievements in fighting crime and developing mutual legal assistance.
But assessing the contribution of this agreement and transforming it into quantitative data is difficult. This study will compare some indicators from before the signing of the agreement and from after it. Furthermore, this study will discuss real cases and evaluate direct benefits for both Taiwan and mainland China.
6.1 Achievements in Cooperation in Combating Crimes
According to the statistics of the MAC, from June 25, 2009 to the end of February, 2010, Taiwan and mainland China have jointly detected criminal cases of fraud (12 cases, 357 people), drugs (1 case, 2 people), and kidnapping(2 cases, 9 people), totaling 15 cases. From these cases, they arrested 368 suspects (280
Taiwanese and 88 mainland Chinese), including 12 cases of telecommunications fraud, arresting 357 suspects (273 Taiwanese and 84 mainland Chinese), demonstrating that cross-Strait cooperation in fighting crime has remarkable results.93
Before the signing of the "Nanjing Agreement", the judicial police institutions of both sides did not have intelligence exchange channels or mechanisms. Sometimes Taiwan police institutions detected a criminal group in Taiwan, but the victims were mainly living in the mainland, or criminal groups were in the mainland, but the victims were in Taiwan. Sometimes police even seized the offender, but they could not find the victims, because it was difficult to execute cross-Strait exchanges of criminal intelligence. However, with the signing of the "Nanjing Agreement", there
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are regulations about delivery of documents, investigation and evidence collection, etc.
Those problems could be significantly reduced.
Police detected the He Fu-Ren fraud group in Pingtung County in May of this year. The criminal group usually impersonated mainland China police or prosecutors, and made phone calls from Taiwan to mainland residents. After being arrested, the suspects admitted that they found that Taiwan police could not easily trace the victims on the other side of Taiwan Strait, so the mainland residents became their prey. In this case Taiwan police has asked the Public Security of the PRC to investigate dummy accounts and victims on the basis of the "Nanjing Agreement". Taiwan police will obtain relevant information soon.94
6.2 Achievement of Mutual Legal Assistance
According to MAC statistics, since June 25, 2009, from the day the "Nanjing Agreement" took effect, to the end of February, 2010, the two sides have carried out more than 5,000 requests for mutual legal assistance, including repatriation on both sides, intelligence exchange, investigation and evidence collection, transfer of criminals, major information communication, business communication, delivery of litigation documents, etc.95, far exceeding the “Agreement on Mutual Legal
Assistance in Criminal Matters between USA and Taiwan”, which has only 73 cases over 7 years. When the counselor of Ministry of Justice, Chen Wen-Qi, was
interviewed on Radio Taiwan International on May 21, 2010, he pointed out that the cross-Strait mutual legal assistance has more than 7,000 cases so far.96The statistics
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prove the rapid progress of cross-Strait mutual legal assistance.97 The eye-catching cases can be stated separately as follows:
1. Repatriation of criminals
As mentioned earlier, from 1990 to May 31, 2008, a period of about 19 years, 168 wanted suspects and criminals were sent back from mainland China to Taiwan on the basis of the "Kinmen Agreement". In comparison, the Ministry of Justice pointed out that from June 25, 2009, the day the “Nanjing Agreement” took effect, to the end of May, 2010, there have been 35 wanted criminals repatriated back to Taiwan within
As mentioned earlier, from 1990 to May 31, 2008, a period of about 19 years, 168 wanted suspects and criminals were sent back from mainland China to Taiwan on the basis of the "Kinmen Agreement". In comparison, the Ministry of Justice pointed out that from June 25, 2009, the day the “Nanjing Agreement” took effect, to the end of May, 2010, there have been 35 wanted criminals repatriated back to Taiwan within